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Monday, July 28, 2014

Service matter - Dismissed from service for unauthorized absent - refused to receive the witnesses and refused to receive Medical certificates - Single judge High court allowed the writ and set aside the dismissal order - DB bench reversed the single Judge - Apex court set aside the order of DB and held that In his reply, the appellant has taken the plea that he was seriously ill between 11.12.89 and 24.10.90, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by Doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant’s unauthorized absence from duty was willful and deliberate.The Inquiry Officer has also not held that appellant’s absence from duty was willful and deliberate. It is neither case of the Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the Inquiry Officer or the Disciplinary Authority to disbelieve the medical certificates issued by the Doctors without any valid reason and on the ground of 24 days delay.=CHHEL SINGH … APPELLANT VERSUS M.G.B. GRAMIN BANK PALI & ORS. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41749

 Service matter - Dismissed from service for unauthorized absent - refused to receive the witnesses and refused to receive Medical certificates - Single judge High court allowed the writ and set aside the dismissal order - DB bench reversed the single Judge - Apex court  set aside the order of DB and held that  In his reply, the appellant has taken  the  plea  that he was seriously ill between 11.12.89 and 24.10.90,  which  was  beyond  his control;  he never intended to  contravene  any  of  the  provisions  of  the service regulations.  He submitted the copies of medical certificates  issued by Doctors in support of his claim after rejoining the  post.   The  medical reports were submitted after about 24 days.  There was  no  allegation  that the appellant’s unauthorized absence from duty was willful  and  deliberate.The Inquiry Officer has also not held that  appellant’s  absence  from  duty was  willful  and  deliberate.  It  is  neither  case  of  the  Disciplinary Authority nor the Inquiry Officer that the medical reports submitted by  the appellant were forged  or  fabricated  or  obtained  for  any  consideration though he was not ill during the said period.  In absence of  such  evidence and finding, it was not open to the  Inquiry  Officer  or  the  Disciplinary Authority to disbelieve the  medical  certificates  issued  by  the  Doctors without any valid reason and on the ground of 24 days delay.=

The  appellant  was  working  with  the  respondent-Bank  since  17th
February, 1984 as Clerk-cum-Cashier.
While in  service  he  remained  absent
from duty from 11th December, 1989 to 24th October, 1990  (approximately  10
and  1/2  months)  without  obtaining  prior  permission  of  the  competent
authority.
For the said reason he was  served  with  a  memorandum  on  5th
October, 1991 alleging contravention of the provisions of the Marwar  Gramin
Bank (Staff) Service Regulations, 1980, for the following charges:
He remained absent from duty from 11th December, 1989 to 24th October,  1990
without obtaining prior permission from the competent authority;
He failed to comply with the orders and directions given to him  which  were
the letters issued asking him to join duty;
He remained absent from duty without any reason.
On the day of joining he failed to submit medical certificate and  submitted
the same after much delay.=
During the inquiry 
the  appellant  submitted  list  of  seven  defence
witnesses.  However, Inquiry Officer called only two witnesses  and  refused
to call rest of the  five  witnesses  on  the  ground  that  the  presenting
officer of the Bank was ready to answer the questions on behalf of  them  as
may be raised by the appellant. After inquiry the Inquiry Officer  submitted
report dated 3rd January, 1994, rejecting the testimony of two witnesses  as
“untrustworthy” and held the appellant guilty for the charges.=
Finally, after hearing the appellant, the Disciplinary  Authority  held  the
charges to be proved and removed the appellant from service by  order  dated
17th October, 1994.=

The learned Single Judge by judgment dated 31st  March,  2009  allowed
the writ petition, quashed the order of removal and directed the  respondent
to reinstate the appellant in service with all consequential  benefits  with
following observation:
 “In the instant case the reason given for not calling the  witnesses  named
by the delinquent employee is absolutely vague and irrelevant. It  does  not
and cannot appeal to the measures and standards of a quasi judicial  inquiry
that ultimately resulted  into  removal  of  the  delinquent  employee  from
service. The refusal to call defence witnesses in  the  manner  existing  in
present case is apparent denial of reasonable  opportunity  to  the  charged
employee for defending himself. A definite prejudice, therefore,  is  caused
by not calling the witnesses  named  by  the  petitioner  without  examining
their relevance and  ultimately  holding  him  guilty  for  the  charges  in
defence of which he indicated his desire to examine those witnesses.”=

But D.B. Bench Reversed the single judge =
Apex court held that
From  the  plain  reading  of  the  charges  we  find  that  the  main
allegation is absence from duty from 11.12.89 to 24.10.90 (approximately  10
and ½  months),  for  which  no  prior  permission  was  obtained  from  the
competent authority.  
In his reply, the appellant has taken  the  plea  that
he was seriously ill between 11.12.89 and 24.10.90,  which  was  beyond  his
control; 
he never intended to  contravene  any  of  the  provisions  of  the
service regulations. 
He submitted the copies of medical certificates  issued
by Doctors in support of his claim after rejoining the  post.   
The  medical
reports were submitted after about 24 days.  
There was  no  allegation  that
the appellant’s unauthorized absence from duty was willful  and  deliberate.

The Inquiry Officer has also not held that  appellant’s  absence  from  duty
was  willful  and  deliberate.  
It  is  neither  case  of  the  Disciplinary
Authority nor the Inquiry Officer that the medical reports submitted by  the
appellant were forged  or  fabricated  or  obtained  for  any  consideration
though he was not ill during the said period.  
In absence of  such  evidence
and finding, it was not open to the  Inquiry  Officer  or  the  Disciplinary
Authority to disbelieve the  medical  certificates  issued  by  the  Doctors
without any valid reason and on the ground of 24 days delay.
16.   In view of the  observation  made  above,  the  order  passed  by  the
Division Bench of the High Court cannot be  upheld.   
We,  accordingly,  set
aside the impugned judgment and order dated 10th May,  2012  passed  by  the
Division Bench of the High Court in D.B. Civil  Special  Appeal  (Writ)  No.
850 of 2009 and upheld the order passed by the learned  Single  Judge  dated
31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of  1995.   
The
respondents are directed to implement the direction  and  order  dated  31st
March, 2009 issued by the learned Single Judge within four  weeks  from  the
date of receipt of copy of this judgment.
17.   The appeal is allowed with aforesaid observations and directions.   No
costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41749

                                                             REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.6018 OF 2014
                  (arising out of SLP (C) No.29807 of 2012)

CHHEL SINGH                                    … APPELLANT

                                   VERSUS

M.G.B. GRAMIN BANK PALI & ORS.                … RESPONDENTS


                               J U D G M E N T


Sudhansu Jyoti Mukhopadhaya, J.

      Leave granted.
2.    This appeal is directed against the  judgment  and  order  dated  10th
May, 2012 passed by the Division Bench of the High Court of  Judicature  for
Rajasthan  at  Jodhpur  whereby  the  Division  Bench  allowed  the   appeal
preferred by the respondent-M.G.B. Gramin Bank,  Pali (hereinafter  referred
to as the “Bank”) and set aside the  order  passed  by  the  learned  Single
Judge.
3.    The factual matrix of the case is as follows:
       The  appellant  was  working  with  the  respondent-Bank  since  17th
February, 1984 as Clerk-cum-Cashier. While in  service  he  remained  absent
from duty from 11th December, 1989 to 24th October, 1990  (approximately  10
and  1/2  months)  without  obtaining  prior  permission  of  the  competent
authority.  For the said reason he was  served  with  a  memorandum  on  5th
October, 1991 alleging contravention of the provisions of the Marwar  Gramin
Bank (Staff) Service Regulations, 1980, for the following charges:
He remained absent from duty from 11th December, 1989 to 24th October,  1990
without obtaining prior permission from the competent authority;
He failed to comply with the orders and directions given to him  which  were
the letters issued asking him to join duty;
He remained absent from duty without any reason.
On the day of joining he failed to submit medical certificate and  submitted
the same after much delay.

4.    The appellant by his reply dated  23rd  November,  1991  disputed  the
allegations and informed that he was seriously ill  between  11th  December,
1989 and 24th October, 1990, therefore, the absence was beyond his  control;
he never intended to  contravene  any  of  the  provisions  of  the  service
regulations. The explanation submitted by the appellant was not accepted  by
the Disciplinary Authority, who decided to  inquire  into  the  charges  and
appointed one Shri P.R. Agarwal as the Inquiry Officer.
5.    During the inquiry the  appellant  submitted  list  of  seven  defence
witnesses.  However, Inquiry Officer called only two witnesses  and  refused
to call rest of the  five  witnesses  on  the  ground  that  the  presenting
officer of the Bank was ready to answer the questions on behalf of  them  as
may be raised by the appellant. After inquiry the Inquiry Officer  submitted
report dated 3rd January, 1994, rejecting the testimony of two witnesses  as
“untrustworthy” and held the appellant guilty for the charges.
6.    The Disciplinary Authority, having gone through the report,  issued  a
show cause notice enclosing the copy of the inquiry report  as  to  why  the
appellant  should  not  be  punished  for  the  charges  mentioned  therein.
Finally, after hearing the appellant, the Disciplinary  Authority  held  the
charges to be proved and removed the appellant from service by  order  dated
17th October, 1994. The appeal preferred against the order  of  the  removal
was dismissed by the Appellate Authority vide  order  dated  26th  December,
1994.
7.    The said orders of the Disciplinary Authority and Appellate  Authority
were challenged by the appellant before the  High  Court  in  Writ  Petition
No.1702/1995. One of the grounds taken was that  the  entire  inquiry  stood
vitiated having conducted in violation of  principles  of  natural  justice.
The Inquiry Officer without having any  justifiable  reason  disallowed  the
prayer of the appellant to  summon  five  important  witnesses.   The  other
ground was that the penalty imposed was disproportionate to the  gravity  of
charges.
8.    The learned Single Judge by judgment dated 31st  March,  2009  allowed
the writ petition, quashed the order of removal and directed the  respondent
to reinstate the appellant in service with all consequential  benefits  with
following observation:
 “In the instant case the reason given for not calling the  witnesses  named
by the delinquent employee is absolutely vague and irrelevant. It  does  not
and cannot appeal to the measures and standards of a quasi judicial  inquiry
that ultimately resulted  into  removal  of  the  delinquent  employee  from
service. The refusal to call defence witnesses in  the  manner  existing  in
present case is apparent denial of reasonable  opportunity  to  the  charged
employee for defending himself. A definite prejudice, therefore,  is  caused
by not calling the witnesses  named  by  the  petitioner  without  examining
their relevance and  ultimately  holding  him  guilty  for  the  charges  in
defence of which he indicated his desire to examine those witnesses.”

      The Court also observed:
“In the instant  matter  the  inquiry  officer  simply  mentioned  that  the
defence witnesses Kalyan Singh and Ganpat  Singh  are  not  trustworthy.  No
reason is  given  by  the  Inquiry  Officer  to  disbelieve  those  persons.
Pertinent  to  note  here  that  Ganpat  Singh  as  well  as  Kalyan   Singh
extensively narrated facts about serious  ailment  of  the  petitioner.  The
Inquiry Officer while disbelieving those persons should have given  definite
reasons to justify his conclusion. Merely saying that the  persons  are  not
found trustworthy, is not at all sufficient. The  basic  principle  is  that
every person coming forward as a witness in  evidence  states  trust  except
proved otherwise, therefore, onus was upon the Inquiry Officer to  establish
by adequate discussion relating to conduct and  character  of  Kalyan  Singh
and  Ganpat  Singh  to  disbelieve  them  or  to  say  that  they  were  not
trustworthy.”

9.    The  aforesaid  judgment  passed  by  the  learned  Single  Judge  was
challenged by the Bank in a writ appeal. The Division Bench though  accepted
that the Inquiry stood vitiated but set aside  the  order  of  reinstatement
with following observation:
      “Therefore, we are of the consigned opinion that even while the  order
as  passed  by  the  learned  Single  Judge  quashing  the  orders  of   the
Disciplinary Authority and the Appellate Authority need  not  be  interfered
with, the other part of the order calls for interference and it  appears  in
the interest of justice that the matter be restored for reconsideration  of,
and re-reporting by,  the  Inquiry  Officer  after  concluding  the  inquiry
proceedings in conformity with the requirements  of  principles  of  natural
justice.
      In view of the above, this appeal  succeeds  and  is  allowed  in  the
manner that the order passed by the learned Single  Judge  insofar  quashing
of the impugned orders dated 17.08.94 and 26.12.1994 is concerned, the  same
is affirmed, but the other part of the order of the  learned  Single  Judge,
declaring the petitioner entitled to  be  reinstated  in  service  with  all
consequential benefits, is set aside. Instead, we  consider  it  proper  and
hence order that the report as made by the Inquiry Officer dated  03.01.1994
shall  stand  annulled   and   the   matter   shall   stand   restored   for
reconsideration of, and re-reporting by, the Inquiry Officer.

      It goes without saying that if the Inquiry  Officer  who  had  earlier
conducted the inquiry is not available, or for any other sufficient  reason,
it shall always be permissible for the  Disciplinary  Authority  to  appoint
any  other  officer  to  inquire  into  the  matter.  For  looking   further
instructions in the matter, the parties  shall  stand  at  noted  to  appear
before the Disciplinary Authority on 18.06.2012.”

10.   The learned counsel for the appellant while placing  reliance  on  the
Inquiry Report and finding of the learned Single Judge  submitted  that  the
inquiry was conducted in violation  of  principle  of  natural  justice  and
hence the learned Single Judge rightly directed  the  reinstatement  of  the
appellant. Whereas according to learned  counsel  for  the  respondent-Bank,
the Division  Bench  rightly  set  aside  the  order  of  reinstatement  and
remitted the matter for fresh enquiry.
11. After giving our careful consideration to the  facts  and  circumstances
of the case and the submission made by the learned counsel for the  parties,
we are of the view that the Division Bench was wrong in  setting  aside  the
order of reinstatement.
12.   The Division Bench has accepted that the  inquiry  stood  vitiated  by
disallowing the request of the appellant to summon  the  rest  of  the  five
witnesses.  For the said reason, the Division Bench has not interfered  with
such part of the finding and  order  passed  by  the  learned  Single  Judge
whereby the impugned order of termination dated 17th October, 1994  and  the
Appellate Authority order dated 26th December, 1994 were quashed.
13.   The order of termination being quashed by the High Court,  in  absence
of any observation and grounds to refuse the  reinstatement,  the  appellant
automatically stood  reinstated.   Without  reinstatement  in  service,  the
question of further inquiry does not arise.  There was no occasion  for  the
Division Bench  of  the  High  Court  to  direct  further  inquiry,  without
reinstatement of appellant.
14.    The  following  charges  were  leveled  against  the  appellant,   as
mentioned in the inquiry report:
      “Charge No.1:
      According to Rule 22(1) of Marwar  Gramin  Bank  Employee  Association
Rules, 1980 no officer or employee would absent himself  without  the  prior
permission from competent authority and in case of disease and  accident  no
one would absent himself without  providing  medical  certificate,  but  you
flouted the instructions of competent authority and without  permission  you
remained  absent  from  11.12.89  to  24.10.90  and  you  got  the   medical
certificate issued  in  connection  with  your  illness  you  submitted  the
medical certificate on 20.10.90 with so much of delay.


Charge No.2:

According to Rule 22(2) of Marwar Gramin Bank  Employee  Association  Rules,
1980 if any officer or employee remains  absent  without  leave  or  remains
absent after the expiry  of  leave,  (leaving  the  circumstances  which  is
beyond  their  control  and  for  that   he   has   to   give   satisfactory
clarification), then he would not be entitled for payment  of  such  absence
or the period after the absence and would be liable for  such  action  which
would  be  charged  by  competent  authority.   But   you   violated   these
instructions:

(D) You remained on medical leave from 11.12.89 to 24.10.90 and you did  not
submit leave application as per rule.

(E) You had been instructed by the  head  office  by  its  letter  no.K/7901
dated 23.08.90 to present yourself on duty within 7 days and  also  to  give
clarification for being absent without leave but  you  did  not  submit  any
reply.  Thereafter also, you were again given instruction  by  head  quarter
letter no.K/10076 dated 22.9.90 you were instructed to present  on  duty  by
05.10.90 and  also  to  submit  the  clarification.   The  said  letter  was
received by you on 4.10.90.  Then also you did not send any  information  to
bank about your absence.

(F)  In  your  clarification  you  have  stated  that  you  could  not  give
information since you were suffering from incurable disease but  in  medical
certificate submitted by you there is no mention of any  incurable  disease,
where it was not possible for you to send the leave information.  Thus,  you
gave wrong information to bank.

      Charge No.3:
      You not being seriously ill, produced the  evidence  of  illness  from
various doctors whereas:
(A) You  travelled  during  your  alleged  serious  illness.   According  to
medical certificate issued by Dr. S.S. Purohit,  Navdeep  Hospital  Palanpur
issued on 25.10.90, you got treatment from him from 13.8.90 to 24.10.90  and
rest has been prescribed  whereas  during  that  period  you  were  on  your
permanent residence at Chitalwana.  You  yourself  received  the  registered
letter no.K/1-0078 dated 22.9.90 and K/11211 dated 11.10.90 at Chitalwana.

(B) In the letter K/11211 dated 11.10.90  the  instruction  given  was  very
clear that join the duty by 27.10.90 and it was stated in that  letter  that
if you do not join the duty then it would  be  presumed  that  you  are  not
interested to work in the bank.  Then you had shown yourself to  be  healthy
and you joined duty on 25.10.90

Charge No.4:

      In Circular no.21/78 dated 22.6.78 it has  been  instructed  that  the
employees on leave on health reason would submit medical  certificate  while
joining on duty.  You violated these instructions and did  not  present  the
medical certificate while joining duty.  You submitted the said  certificate
on 20.10.90 with delay.”


15.   From  the  plain  reading  of  the  charges  we  find  that  the  main
allegation is absence from duty from 11.12.89 to 24.10.90 (approximately  10
and ½  months),  for  which  no  prior  permission  was  obtained  from  the
competent authority.  In his reply, the appellant has taken  the  plea  that
he was seriously ill between 11.12.89 and 24.10.90,  which  was  beyond  his
control; he never intended to  contravene  any  of  the  provisions  of  the
service regulations. He submitted the copies of medical certificates  issued
by Doctors in support of his claim after rejoining the  post.   The  medical
reports were submitted after about 24 days.  There was  no  allegation  that
the appellant’s unauthorized absence from duty was willful  and  deliberate.
The Inquiry Officer has also not held that  appellant’s  absence  from  duty
was  willful  and  deliberate.  It  is  neither  case  of  the  Disciplinary
Authority nor the Inquiry Officer that the medical reports submitted by  the
appellant were forged  or  fabricated  or  obtained  for  any  consideration
though he was not ill during the said period.  In absence of  such  evidence
and finding, it was not open to the  Inquiry  Officer  or  the  Disciplinary
Authority to disbelieve the  medical  certificates  issued  by  the  Doctors
without any valid reason and on the ground of 24 days delay.
16.   In view of the  observation  made  above,  the  order  passed  by  the
Division Bench of the High Court cannot be  upheld.   We,  accordingly,  set
aside the impugned judgment and order dated 10th May,  2012  passed  by  the
Division Bench of the High Court in D.B. Civil  Special  Appeal  (Writ)  No.
850 of 2009 and upheld the order passed by the learned  Single  Judge  dated
31st March, 2009 in S.B. Civil Appeal Writ Petition No. 1702 of  1995.   The
respondents are directed to implement the direction  and  order  dated  31st
March, 2009 issued by the learned Single Judge within four  weeks  from  the
date of receipt of copy of this judgment.
17.   The appeal is allowed with aforesaid observations and directions.   No
costs.



                                               …………………………………………………………………….J.
                                       (SUDHANSU JYOTI MUKHOPADHAYA)



                                                ………………………………………………………………….J.
                                           (V. GOPALA GOWDA)

NEW DELHI,
JULY 07, 2014.

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